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Gary M. Galles - Contributor

Mr. Galles is a professor of econmics at Pepperdine University.

Rejecting a Judge for Respecting the Constitution?
The Ugly Campaign Against Justice Janice Rogers Brown
[Gary M. Galles] 11/7/03

The latest battle in the Washington war over court appointments has erupted. California Supreme Court Justice Janice Rogers Brown, President Bush's nominee to the U.S. Court of Appeals for the District of Columbia, had her hearing before the Senate Judiciary Committee. Many insiders think her nomination will be moved to the full Senate on a 10-9 party-line vote, where an intense campaign by liberal groups may land her on the list of jurists Democrats have decided to filibuster.

What makes killing her nomination so important? It is something she shares with the other nominees who have been filibustered. According to the Congressional Black Caucus, it is the charge that she is a conservative with a "disdain for legal precedent." Senator Richard Durbin (D-Ill)seconded that, saying "You frequently dismiss judicial precedence...when it doesn't comport with your political views," and other interest groups echo the same charge.

However, the criticism being directed at Justice Brown is, in fact, nothing more than an intentionally misleading spin on the fact that she proposes to be faithful to the Constitution. That is what makes some desperate to stop her nomination.

Brown has taken seriously our founding documents. In particular, she has taken the idea that the Constitution is the highest law of the land seriously. This is clearly what our founders had in mind, as made clear in Federalist 78: "where the will of the legislature, declared in its statues, stands in opposition to those of the people, declared in the Constitution, the judges ought to be governed by the latter than the former." But this makes her diametrically opposed to those who think of the Constitution as a "living document," because if the meaning of the Constitution can be easily changed by innovative interpretations, then the Constitution cannot be the highest law of the land in practice.

That is why understanding Brown's attitude toward precedent is so important. She has clearly stated she would follow binding precedent as an Appellate Judge, and those she works with endorse that claim. But the D.C. Appeals court has jurisdiction over many regulatory matters, and is widely considered a stepping-stone to the Supreme Court. Especially if she were to take that next step, her intent to be faithful to the Constitution, as an earlier, controlling precedent could result in overturning some rulings that have moved us far from it.

That approach threatens liberal precedents that have created new rights out of thin air (or out of "emanations from penumbras" around stated rights) or have done serious violence to the meaning of the Constitution through reinterpreting what its words mean (words like "taking" and "commerce," and even "no" and "not"). But those are the precedents liberals are most desperate to retain.

What seems to be the biggest issue to Brown's opponents is to preserve the pattern of Supreme Court activity over the last century or so: liberal courts create new rights and expand government powers, then conservative courts, out of deference to those "new and improved" precedents, leave them in place, and even build upon them further, rather than rolling them back. Of course, if courts are to defer to earlier precedents, how can the activist rulings (such as from the New Deal and Warren courts) which some are now so adamant to protect be defended, since they clearly deviated from precedent?

For now, Justice Brown's views about precedent are moot. She would be an appellate court judge, upon whom the Supreme Court's rulings would be binding, whether or not she thought they were correctly decided. But those most threatened by someone who would take the Constitution seriously, if elevated to the Supreme Court, are so concerned they must keep her off the Appellate Court, just in case.

Justice Brown has never advocated overturn of precedents that protect citizens from government abuse, which was the primary purpose of the Constitution. She has only taken exception to rulings which are blatantly inconsistent with it, to reinstate those protections and rights that have been eroded since it was written. If that is considered a valid criticism of a potential judge, one important enough to trigger such determined attempts to stop her nomination, then we might as well admit it: Much of the Constitution is already a dead letter, with little hope of resurrection.

copyright 2003 Gary M. Galles




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